An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA04-1692

NORTH CAROLINA COURT OF APPEALS

Filed: 4 October 2005

IN THE MATTER OF:                         New Hanover County             No. 04 J 231                
    D.B.B.
                        

    Appeal by juvenile from judgment entered 18 November 2004 by Judge Shelly S. Holt in New Hanover County District Court. Heard in the Court of Appeals 24 August 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Christine Goebel, for the State.

    Hosford & Hosford, P.L.L.C., by Sofie W. Hosford, for respondent appellant.

    MCCULLOUGH, Judge.

     Defendant (D.B.B.) appeals from an adjudication of being delinquent and responsible for committing sexual battery and simple assault and an order of probation for a period of twelve months. We reverse and remand.

Facts
    The State presented the following evidence at trial: On 31 March 2004, the victim and her friend (Shanice) were playing in the park at the Resource Center after school. Three boys, Tymir, Ja'hie and defendant approached the two girls and began chasing the victim and calling her names. Defendant then kicked the victim with his roller skates in her stomach. The victim was then tripped by one of the other two boys and defendant held her back down tothe ground. After the victim was on the ground, Tymir and Ja'hie opened her coat, pulled her shirt down and touched her breasts. Defendant was watching as the other two did this to the victim. Officer Rinehart, an investigating officer testified that the victim stated that after she stood up, one of the boys was holding her hands behind her back and at that time she felt one of them rubbing his penis on her. Both investigating officers testified that it is unknown as to which boy was behind the victim at this point. Officer Irving testified that the victim did not think that it was defendant who rubbed his penis on her, but rather one of the other two boys.
    After the incident, the victim went and told her mother what happened. The victim's mother then sent her to tell the Director of the Resource Center, Veronica Bidding. Bidding testified at trial that after learning of the incident she questioned the three boys involved. She stated that none of the boys denied what had happened and that when she told them that she was calling the police they all stated that they did not care.
    Two investigating officers testified at trial, Officer Irving and Officer Rinehart. Officer Rinehart testified to statements by Ms. Bidding that defendant told her that he tried to pull the victim's pants down. On the other hand, Officer Irving testified that Ms. Bidding stated on the following day that defendant had instead admitted to taking the victim's jacket off. At trial Ms. Bidding testified that defendant admitted to nothing, but did not deny anything either. The victim and Shanice testified that afterdefendant kicked the victim with his roller skate, he just watched and did not participate further.
    At the close of the State's evidence and again at the close of all the evidence, defendant made a motion to dismiss the charge of sexual battery. The court denied the motion. The judge found that sexual battery had been committed by defendant in pulling down her bra, exposing her breasts and exposing his penis in an attempt to penetrate her from behind. The trial judge also found that defendant committed simple assault by unlawfully and willfully jumping on the victim's back and knocking her to the ground. The court then adjudicated defendant delinquent and responsible for committing sexual battery and simple assault and ordered probation for a period of twelve months.
    Defendant now appeals.
Analysis
    On appeal, defendant does not assign any error as to the simple assault delinquent adjudication and therefore it is not addressed by this Court.
    Defendant, however, does argue on appeal that the district court judge erred in denying defendant's motion to dismiss the charge of sexual battery at the close of the evidence. We agree.
    “In ruling on a motion to dismiss for insufficient evidence the trial court must consider the evidence in the light most favorable to the state, which is entitled to every reasonable inference which can be drawn from the evidence.” State v. McNicholas, 322 N.C. 548, 556-57, 369 S.E.2d 569, 574 (1988).“There must, however, be substantial evidence of each essential element of the offense charged, together with evidence that defendant was the perpetrator of the offense.” Id. “Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992). “'Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'” State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances.” Id. However, if the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the perpetrator, the motion should be allowed. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
    The evidence on the issue of identity was: Three boys were chasing the victim through the playground. Defendant kicked the victim with his roller skate and she fell to the ground. After falling to the ground, defendant held the victim on the ground by placing his hands on her back. After that, the other two boys, Tymir and Ja'hie, pulled down the victim's shirt and began to touch her breasts. After the victim was off the ground and standing up, someone went behind her, unzipped his pants and began to rub his penis on her.     The judge found that sexual battery had been committed by defendant in pulling down the victim's bra, exposing her breasts and exposing his penis in an attempt to penetrate her from behind. There is absolutely no evidence in the record, even taken in the light most favorable to the State, that defendant pulled down the victim's bra and exposed her breasts. Neither the victim nor any witness stated that defendant participated in pulling down the victim's shirt or touching her breasts.
    As to exposing his penis, even taking this evidence in the light most favorable to the State, the judge could not reasonably infer from it that defendant was the person who came up behind the victim and rubbed his penis on her. The court should not engage in mere speculation. In the instant case, there is evidence that three boys were involved in pushing the victim to the ground. After that, two of the boys, Tymir and Ja'hie, pulled down her bra and touched her breasts. After the victim was again standing, one of the boys held her hands behind her back and at that time she felt one of them rub her penis on her. The only reasonable inference that can be taken from this evidence is that one of the three boys pulled down his pants and touched the victim with his penis. There is no evidence that defendant was the one who engaged in this act. Therefore, where the evidence only allows an inference of suspicion and conjecture that defendant was the perpetrator of the crime, the motion to dismiss as to sexual battery should have been granted.
     Accordingly, we reverse as to the sexual battery adjudication and remand for sentencing in accordance with this opinion.    Reversed and remanded.
    Judges McGEE and JACKSON concur.
    Report per Rule 30(e).

    

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